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Where Women Are

 | 
Nanjala Nyabola
, 
Marie-Emmanuelle Pommerolle

The Missing Piece: The Legislature, Gender Parity and Constitutional Legitimacy in Kenya

Marilyn Muthoni Kamaru

Resumen

Despite Kenya’s democratic credentials and a robust progressive legal framework as reflected in the Constitution of Kenya 2010; since 2013 the actions of the national executive and legislature demonstrate a retreat from principles of democracy, constitutionalism and the rule of law. These actions have culminated in an unconstitutional Parliament, an unconstitutional national Cabinet and an unconstitutional Supreme Court. In all three instances the national institutions are unconstitutional because they violate the provisions of the Constitution on gender representation. Legitimacy as a purely political concept ignores the illegality of state institutions. However, these illegalities reflect a latent constitutional crisis which impugns the legitimacy of the Kenya government and reflects a rejection of the Constitution of Kenya 2010, especially its guarantees of women’s citizenship and equality. This failure of state institutions and constitutional offices to act in compliance and/or defence of the Constitution is unprecedented since the promulgation of the Constitution in 2010. The deliberate departure from constitutionalism, democracy and the rule of law marks a period of instability as the government asserts a new order, whose reference and legitimacy it seems lie beyond the Constitution of Kenya 2010.

Texto completo

Introduction

1After the contentious 2017 elections, the focus on the legitimacy of the national government has tended to focus on the mechanics of the electoral process and political legitimacy. However, this chapter argues that the 2017 elections were illegally conducted in violation of the Constitution, and the rights of the majority of Kenya’s female citizens, resulting in an unconstitutional Parliament. This chapter details the actions of key government actors prior to the 2017 general election and the way those actions compromised the legality of the general election before the first vote was cast by violating the Constitution - effectively reading women’s rights out of the electoral process - and how post-election, these violations have resulted in an unconstitutional national government.

2If we accept that legitimacy in a constitutional democracy is both a legal and political concept – legal first and political second – then in determining the legitimacy of the Kenyan government we must first examine the legality of the government. The government’s legitimacy cannot rest outside the legal framework that gives birth to it. It is therefore necessary to expose the constitutional and legal framework in terms of the process and composition of government to make a determination of legitimacy. However, more than that, an examination of the role of the law in the establishment of government provides important clues to the nature of the government as well as to its commitment to law and policy. A government that does not comply with the Constitution is signalling a departure from the established legal and social norms, further such a government is unlikely to have a commitment to implement policies.

3An unconstitutional process, whether electoral or appointive, cannot yield a legal or legitimate government. The actions of the executive, legislature and the Independent and Electoral Boundaries Commission (IEBC) leading up to the 2017 election reflect a shared view that compliance with constitutional provisions on gender representation were an optional, not mandatory element of a legitimate electoral process. Post-election, the actions of the executive and legislature in constituting Cabinet have been done contrary to the law, further undermining the legitimacy of the current government. A government formed in violation of the Constitution of Kenya 2010, whether through election in the case of parliament or appointment in the case of cabinet, cannot be legitimate. This chapter argues that the national government fails the test of legality as provided in the constitutional framework, and as such it is not, despite its assertion to the contrary and recognition nationally and internationally, legitimate.

A History of Non-Compliance

4In 2010 Kenya replaced its governance framework and adopted the Constitution of Kenya 2010 which Yash Ghai and Jill Cottrell Ghai refer to as “a people centred Constitution” (Ghai & Ghai, 2011: 4). Article 1 of the Constitution provides “All sovereign power belongs to the people of Kenya.” The 2010 Constitution is the result of decades of struggle for a more democratic, inclusive and responsive government. It was precipitated by the disputed 2007 election and the post-election violence. As such it marked a new start for Kenya and reflects the aspirations of Kenyans both in terms of governance, politics and political processes and institutions. The Constitution as the legal expression of the sovereign power of the people, is the supreme law and as Article 2 directs, it is binding on “all persons and all State organs at both levels of government.” The Constitution is therefore the definitive text on the legality of political processes and government bodies, addressing both the legal requirements for a government but also its legitimacy as an expression of compliance with the sovereign will of the people.

5Legality, can be defined as compliance with the legal framework in the process and composition of the government, whether elective or appointive, and it is a prerequisite to its legitimacy. This is because the government is a creation of the legal framework. Legality creates a presumption of legitimacy: The Constitution defines both the process of establishing a legitimate government and the composition of its various bodies. The first pre-election legitimacy issue is grounded in the provisions of Chapter One on Sovereignty of the People and the Supremacy of this Constitution, Chapter Four on the Bill of Rights and Chapter Seven on Representation of the People.

6Kenya is a constitutional democracy. Article 4 (2) of the Constitution provides that Kenya is a “multi-party democratic state” For the first time in Kenya’s history the 2010 Constitution in the Bill of Rights provided that men and women were equal and entitled to “equal protection and equal benefit of the law.” The Constitution also created a quota to increase women’s representation in leadership both elective and appointive. This quota is provided in two key constitutional provisions: in the Bill of Rights, equality provisions as well as in the principles of the electoral system. The Constitution recognizes the Bill of Rights as “an integral part of Kenya’s democratic state” (Article 19 (1)) and provides that “the rights and fundamental freedoms in the Bill of Rights- (a) belong to each individual and are not granted by the State (c) are subject only to the limitations contemplated in this Constitution.” (Article 19 (3). The Constitution, therefore recognizes that those rights in the Bill of Rights precede the state and their limitation is strictly circumscribed. In this context the provisions of Article 27 (8) which provides “… the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender” provide both a mathematical formula as well as a legal litmus test to determine whether elective or appointive bodies are duly constituted. Article 81 provides general principles of the electoral system, not just elections but the system, and 81 (b) reiterates this litmus test by anchoring it as a principle of the electoral system along with universal suffrage and free and fair elections.

7The gender representation principle in the Constitution differs from traditional gender quotas in that it is not a minimum inclusionary principle; rather it is a limitation on the maximum representation of a single gender in public appointments and bodies ( “not more than two-thirds”). It establishes a ceiling in terms of the legally acceptable representation. The principle is therefore directed at ensuring that no single gender dominates appointive or elective public bodies with a super majority defined as more than two-thirds or sixty-seven per cent. In this way, the gender principle is more than a quota, it is a constitutional limitation on the power or dominance of either gender. In the context of Kenyan history, the adoption of the gender principle marked the end of legal male dominance of government bodies both in elective and appointive positions.

8Since 2010 Kenya has had a devolved system of governance with two levels of government, national and county. At the county level, Article 177 does not establish the maximum membership of the county legislature and Article 177 (1) (b) provides for a post-election nomination process to ensure that the County Assembly is duly constituted in terms of gender. At the national level, Articles 97 and 98 define the maximum membership of the National Assembly three hundred and forty-nine (349) and Senate sixty-seven (67) respectively (exclusive of the speakers) but are silent on any mechanism to realize the requisite gender representation if elections did not result in a body that has more than two-thirds of the membership of the same gender. This gap in terms of the gender principle at the national legislature has been the subject of litigation since before the first election under the new Constitution. In 2012 the Office of the Attorney General (OAG) repeatedly warned of the potential for a constitutional crisis if Parliament did not enact legislation to implement the gender principle in the national legislature before the 2013 election.

9Githu warned that the country faces a constitutional crisis if Parliament fails to resolve the issue of the one-third-gender rule. The Attorney General who is the Government’s chief legal advisor warned that if the matter was not addressed the next Parliament would be illegitimate. Muigai asserted:

We will seek to persuade Parliament to pass the Amendment Bill as it was published by Mutula. This is the easiest way to achieve the one third gender rule without doing much violence to the spirit of the Constitution. It is something that poses a real threat to the future.

10In 2012 the Attorney General moved to the Supreme Court and the question for the determination by the court was:

Whether Article 81 (b) as read with Article 27 (4), Article 27 (6), Article 27 (8), Article 96, Article 97, Article 98, Article 177 (1) (b), Article 116 and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one-third gender rule or requires the same to be implemented during the general elections scheduled for 4th March, 2013.

11In its determination, the Supreme Court seemed to adopt the Attorney General’s arguments that certainty about Parliament’s legality was necessary should the March 2013 election fail to yield a gender compliant Parliament. The court emphasized that “Such a prospect, the Attorney-General urged, may lead to a constitutional crisis, with the possibility of the National Assembly being declared unconstitutional.” The Supreme Court majority decision held that legislation to provide for the realization of the gender principle in Art. 27 (8) and 81 (b) on gender representation should be enacted by August 27 2015.

Bearing in mind the terms of Article 100 [on promotion of representation of marginalised groups] and of the Fifth Schedule [prescribing time-frames for the enactment of required legislation], we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81 (b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015.

12The Supreme Court Advisory Opinion 2 of 2012 thus provided legal cover for the 2013 general election as well as for the illegally constituted 11th Parliament (Bouka et al, 2017: 29) (NDI & FIDA, 2013: 48 - 49) for at least part of their term. The implications of this decision in 2018 are significant. The Supreme Court’s 2012 decision did not foresee another general election under the constitutional framework without legislation enacted to ensure the representation of women in Parliament as required by Article 27 (8) and 81 (b). Meaning that any subsequent election would not have the veneer of legality afforded by the 2013 election, and legality of the elected Parliament (process and result) would be defined by adherence to the constitutional provisions as well as the Supreme Court judgment (Kamuru, 2018).

13From 2012 to 2017 there were significant efforts made by women’s rights organizations to ensure the enactment of the required legislation. The OAG established a Technical Working Group (TWG), which was commissioned on February 3, 2014. The TWG members included the OAG, Commission on the Implementation of the Constitution (CIC), IEBC, the Ministry of Devolution and Planning (responsible for gender), Office of the Registrar of Political Parties, Legal Committee of the National Assembly and Senate, the Kenya Women’s Parliamentary Association (KEWOPA) and the International Federation of Women Lawyers (FIDA) representing the civil society. The TWG recommended that Parliament, through the introduction of a constitutional amendment bill, delete the membership restriction in Articles 97 and 98 and lift the provisions of Article 177 (1) (b) on County Assemblies to apply to Parliament. There was also an initiative (popularly known as the Green Amendment Campaign) by the Kenya Parliamentary Human Rights Association (KEPHRA) to amend the Constitution through a popular initiative which involved the collection of one million signatures to be presented to IEBC and the formulation of a bill to implement Article 81 (b) to the County Assemblies.

14Despite the TWG recommendations it took an order of the High Court for the government to introduce a bill on Article 81 (b). In 2015, the Centre for Rights Education and Awareness (CREAW) a women’s rights organization sued the Attorney General and the CIC under Article 261 (4) which provides “the Attorney General in consultation with the Commission on the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament to enact the legislation within the period specified.” Based on the Supreme Court judgement, the period in question was five years from the date of the promulgation of the Constitution August 27, 2010, i.e. August 27, 2015 with provision for a one-year extension provided in Article 261 (2).

15In the 2015 CREAW case, which relied on the Supreme Court Advisory Opinion 2 of 2012, the Attorney General attempted to argue that a Supreme Court Advisory Opinion was not binding, however, the Court rejected that argument. The High Court directed that:

An order of Mandamus be and is hereby issued directed at the 1st and 2nd Respondents directing them to, within the next forty (40) days from the date hereof, (emphasis mine) prepare the relevant Bill (s) for tabling before Parliament for purposes of implementation of Articles 27 (8) and 81 (b) of the Constitution as read with Article 100 and the Supreme Court Advisory Opinion dated 11th December 2012 in Reference Number 2 of 2012.

16The High Court further noted that “should Parliament fail to act, then doubtless a vigilant Kenyan may invoke the provisions of Article 261 (5)- (7).” These provisions of the Constitution relate to the dissolution of Parliament for failure to enact legislation required by the Constitution.

17Therefore, in June 2015, less than two months before the deadline provided by the Supreme Court for enactment of legislation the government had yet to comply and the High Court was warning the OAG and Parliament of the severe consequences of non-compliance. As a result of the High Court order the Constitution of Kenya (Amendment) (No. 4) Bill of 2015 was introduced to the National Assembly but it failed to garner the required two-thirds majority at the second reading. Again, the OAG was on record about the significance of compliance and while the warnings focused on the implications of a Parliament whose composition violated the Constitution, they are also a plea about the importance of a legal framework that guarantees constitutional compliance.

The legitimacy of the incoming Parliament post the 2017 General Election could be called into question where the two thirds gender principle is not attained with all the attendants’ risks and consequences, he warned.

18In a letter to the Speakers of Parliament, a year before the general elections, the OAG wrote:

We wish to draw your attention to the possibility that a petition under Article 261 could portend against the current Parliament, thereby initiating the process towards dissolution of Parliament in the event of failure to adhere to the orders and directions of the court.

19In March 2017 in a final effort to secure compliance before the August 2017 elections, three civil society organizations, CREAw Community Advocacy Awareness (CRAWN) Trust and the Kenya National Human Rights Commission sued the National Assembly, the Senate and the OAG under Chapter Eighteen of the Constitution on the transitional and consequential provisions of the Constitution. The High Court found in their favour and directed:

[…] if Parliament fails to enact said legislation within the said period of SIXTY (60) DAYS from the date of this order, the Petitioners or any other person shall be at liberty to petition the Honourable the Chief Judge to advise the President to dissolve Parliament.

20The provisions on the dissolution of Parliament in Article 261 (6) and (7), provide no discretion on the part of the Chief Justice or the President. On June 15, 2017, months to the general election, the 11th Parliament was adjourned – before it had enacted legislation on Article 81 (b).

21Despite the Supreme Court and High Court judgements, the 11th Parliament has repeatedly refused to comply with its mandatory constitutional obligation and enact legislation on Articles 81 (b) and 27 (8) (Mumma, 2016). Article 3 (1) of the Constitution provides that “Every person has an obligation to respect, uphold and defend this Constitution,” as such each Member of Parliament (MP) has an individual obligation to act in accordance with the Constitution. Parliament’s rationale for failure to pass constitutionally required legislation is also an indictment of Parliament as an institution. Members of Parliament are holders of constitutional offices, their authority individual and collective exists within the Constitution and is specifically limited in Article 2 (2) “No person may claim to exercise State authority except as authorised by this Constitution,” Article 93 (2) then provides that “The National Assembly and the Senate shall perform their respective functions in accordance with this Constitution.” These requirements, in addition to their oath of office mean that once the judiciary interpreted the Constitution, members of Parliament have no legal choice but to comply. Parliament’s refusal to comply isn’t a technical legal issue; it is a deliberate attempt to overthrow the governance framework as established by the Constitution of Kenya. As Yash Ghai & Jill Contrell Ghai note while constitutions are not politics they reflect political choices “Constitutions affect politics, hopefully by constitutional values, and definitely by the rules for elections” (Ghai & Ghai, 2011: 4)

22The constitutional relief for a non-compliant Parliament is the dissolution of Parliament. The dissolution of Parliament provided in Article 261 (7) is a last resort, meant to reassert the supremacy of the Constitution and to tame a rogue Parliament. In Facing Up to the Democratic Recession, Larry Diamond explores a global trend of democratic failure since the 1980s and notes that the majority of democratic failures since 2000 have “resulted from the abuse of power and the desecration of democratic institutions and practices by democratically elected rulers” (Diamond, 2015: 147). The 11th Parliament’s failure to enact constitutionally required legislation despite multiple court orders is a perfect example of defilement of democratic institutions and norms by democratically elected leaders.

23The 2017 general elections were therefore conducted without the required legislation or regulations to ensure that the “electoral system” and the election of the national legislature guaranteed compliance with the constitutional provisions on elective bodies in Article 27 (8) and Article 81 (b). As such the 2017 general elections, as process were unconstitutional and therefore illegitimate.

24State institutions from the executive, parliament, judiciary and IEBC among others went into the 2017 general election without a framework to ensure the constitutionally required gender representation and fully cognizant of the risk that the resultant 12th Parliament would be unconstitutional because it failed to meet the minimum requirements in Articles 27 (8) and 81 (b) (Kamuru, 2016). This is also true of development partners including the United Nations Development Programme and bilateral donors to its Strengthening the Electoral Processes in Kenya Project (SEPK); including the United States, the United Kingdom and the European Union. Livitsky and Ziblatt note that: “even well-designed Constitutions cannot, by themselves, guarantee democracy.” (Livitsky & Ziblatt, 2018: Loc.) The actions (and/or inaction) of public institutions as well as regional and international bodies play an important role in reinforcing, or not, democratic norms.

25Post-election, the 12th Parliament’s composition raises a separate basis for its unconstitutionality and consequent illegitimacy. According the NDI and FIDA Report: A Gender Analysis of the 2017 General Elections, the National Assembly is 78.5 % male and 21.5 % female while the Senate is 68.6 % male and 31.3 % female: both bodies are therefore illegally constituted as they exceed 67 % of the majority gender in violation of Articles 27 (8) and 81 (b) (NDI & FIDA, 2018: 30).

26As such, even if the process of conducting an election in violation of the Constitution and the law (court judgments in a common law system form part of the law) did not give rise to an illegitimate government; the composition of the 12th Parliament does. International observer reports on the 2017 general elections including the Carter Report and the European Union Election Observation Mission Final Report noted that the newly elected Parliament was in violation of the constitutional provisions on gender representation. It is therefore in the national and international public domain that the 12th Parliament is constituted in violation of the supreme law. Given this consensus on the unconstitutionality of the 12th Parliament, we must ask what are the implications of the unconstitutionality of the 12th Parliament? Again, we must look to the law for direction.

27Unlike the 11th Parliament, which while unconstitutional in composition had legal permission to conduct parliamentary business based on the Supreme Court judgement. The unconstitutional 12th Parliament has no such legal cover and exists entirely outside the constitutional framework. This is especially significant as under Kenyan law there is no mechanism to challenge the electoral process in its entirety. As such once the general election was held, all post-election challenges could only be based on individual elective positions at the parliamentary or presidential level. The legal framework provides no means to challenge the illegal election process in its entirety. However, the Constitution in Article 3 (2) provides “Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful”. As such, Parliament that is composed in contravention of the Constitution is unconstitutional and is therefore unlawful and illegitimate.

28On September 27, 2017 a petition was received by the Office of the Chief Justice (OCJ) requesting the Chief Justice to act as prescribed in Article 261 (7) and advise the President to dissolve Parliament. In addition, an online petition also seeking the dissolution of Parliament by #WeAre52pc a feminist collective collected more than 600 signatures. On November 24, 2017 a letter sharing the online petition and requesting a public position on the petitions for dissolution was received by the OCJ. To date the OCJ has issued no public statements on the petitions or the compliance of the OCJ with the mandatory provisions of Article 261.

29As Professors Kabira and Kameri-Mbote note although elections have been grounded on traditional issues of representation “the gender question has challenged the meaning of democracy” (Kabira & Kameri-Mbote, 2016: 179) that the Kenyan Parliament is established in violation of the Constitution to exclude the majority of citizens is a direct indictment of democracy.

Entrenching illegality

30Post-election, the political uncertainty surrounding the repeat Presidential election, resulted in a delay in the naming of the national Cabinet. On January 5, 2018 President Uhuru Kenyatta started the process of constituting his second term Cabinet by naming some of his nominees. The President’s announcement was unusual in two significant respects. First, it was a partial list; the President only announced 9 nominees (the Constitution demands a minimum of 14 and allows him to name up to 22 Cabinet Secretaries and his last Cabinet had 18). Second, the President said he was “retaining” some Cabinet Secretaries and as such he would not be sending the names of all his Cabinet nominees to the National Assembly for vetting. The President’s statement implied an existing Cabinet, whose term continued uninterrupted through the 2017 general elections. However, a December 2015 High Court decision held that the tenure of all appointed members of Cabinet ended on August 8, 2017. In attempting to retain some members of the previous Cabinet and exempt them from National Assembly approval the President is acting in contravention of the Constitution and a valid judgment of the High Court.

31Nominating Cabinet Secretaries and constituting a cabinet is a constitutional obligation of the President contained in Articles 129, 130, 131 and 132. Article 129 states that all “executive authority is derived from the people of Kenya and shall be exercised only in accordance with this Constitution.” This provision underscores that executive power is delegated and limited: it is delegated from the people and may not be legally exercised outside of the limits set by Constitution. Article 130 defines the national executive as including the President, the Deputy President and “the rest of the Cabinet,” thereby emphasizing the Cabinet as integral to the national executive. Article 131 provides that the President exercises executive authority “with the assistance of the Deputy President and Cabinet Secretaries” emphasizing the necessity of the Cabinet as an instrument for the exercise of executive authority. Additionally, Article 131 (a) obligates the President to respect and uphold the Constitution and ensure the “rule of law.” Article 131 (e). Article 132 (2) explicitly vests powers to appoint Cabinet in the President, providing that s/he “shall nominate, and with the approval of the National Assembly, appoint” Cabinet Secretaries as prescribed in Article 152. The President therefore has a constitutional obligation to constitute a Cabinet whose membership is constitutionally defined and to do so as prescribed by the Constitution. Further, the President’s adherence to this process is a requirement for the legitimate exercise of executive authority.

32As such, while the President has the power to nominate he may not legally, without the approval of the National Assembly appoint anyone to Cabinet. In establishing a legal and therefore, presumptively legitimate Cabinet, the President must follow the process in the Constitution and the law, which includes relevant judicial decisions.

33Judicial decisions regarding the process of constituting Cabinet would therefore apply to the President as he undertakes this function. On December 20, 2016 the Constitutional and Human Rights Division of the High Court in Petition 566 of 2015 held that the Cabinet was unconstitutional, as its composition violated Article 27 (8). The High Court was asked to address two issues: the constitutionality of, the process of constituting cabinet, and of the composition of cabinet (emphasis mine). In addition, to finding the Cabinet unconstitutional, the High Court found that “the actions of the President and the National Assembly… in nominating, approving and appointing the cabinet” were unconstitutional. As such the process of establishing the Cabinet and the resulting Cabinet were both declared unconstitutional.

34However, the High Court, citing public interest, suspended the judgement for “a period of eight months or until such a time a new cabinet will be constituted either by the present government or by the new government to be elected into office in August 2017.” The OAG did not appeal this high Court judgment, as such this decision is final. The effect of this judgement, like the Supreme Court judgement in 2012 on Parliament, was that it provided temporary legal permission for the Cabinet’s continued existence, with such permission set to automatically expire if the President named a new Cabinet or a general election was held. The President did not make any changes to the Cabinet prior to the 2017 general election.

35Therefore, the term for all appointive members of the Cabinet ended on August 8, 2017 by judicial order. As such, the President was required, by law to name a fresh Cabinet (a minimum of 15 and a maximum of 23, including the Attorney General). The requirement that the President undergo the process of establishing a new Cabinet did not preclude the President from nominating some of the members of the previous Cabinet. However, the names of all of the President’s nominees would then be submitted to the National Assembly for vetting and approval prior to appointment as required by law.

36The decision of the High Court in Petition 566 of 2015 found that both (emphasis mine) the President and National Assembly had violated their obligations in the process of constituting Cabinet (this includes nominating, approving and appointing the last Cabinet). The High Court in holding that the National Assembly had failed to perform its role in approving Cabinet nominees, found that the National Assembly must:

Apply a strict scrutiny in approving of any action of the executive (emphasis mine) and where the action involves appointment to public posts a most searching examination in all aspects must be invoked by the National Assembly.

37Therefore, the National Assembly cannot be a ‘rubber stamp’ of Presidential nominees but must exercise the highest legal standard in the vetting and approval, or rejection, of executive nominees.

38The High Court was explicit that in some cases it is the role of the National Assembly to correct the President “The National Assembly must exercise that perfect overseer role and tap the President on the shoulder where he is about to slip.” The National Assembly therefore has a constitutional obligation to remind the President that all proposed nominees must undergo the entire process of nomination, vetting and approval by the National Assembly, prior to their appointment. In addition, the High Court clarified that the National Assembly must reject a proposed Cabinet whose composition would violate the law. Despite this valid High Court judgment, the National Assembly failed to apply the “strict scrutiny” standard demanded by the High Court, approving all nine nominees without any reference to the other members of Cabinet or the High Court decision.

39The President didn’t violate the law by providing only a partial list of nominees. However, by failing to submit the names of all Cabinet nominees to the National Assembly for vetting and approval and asserting the existence of a valid Cabinet after August 8, 2017, the President is acting in deliberate contravention of the Constitution and the law. The National Assembly similarly failed in its constitutional role by failing to comply with the High Court decision and requiring the President to present his entire list of nominees for vetting. The process of constituting the first post-2017 election Cabinet was therefore illegal. This Cabinet has 18 men and 6 women making the majority male gender 75 % of Cabinet well in excess of the mandatory 67 % and thereby violating the Article 27 (8) of the Constitution and the High Court judgment. As such, both the process of constituting cabinet, and the cabinet itself, are unconstitutional.

40Article 1 of the Constitution explicitly limits the exercise of all authority to that which is in compliance with the Constitution, and by so doing provides that exercise of authority beyond that accorded in the Constitution is illegal. Again, Article 3 outlaws any government that doesn’t comply with the Constitution. For an administration whose legitimacy ultimately, rests on a judicial decision the President’s willful disregard of a court order is also evidence of continued resistance to the constitutional exercise of judicial authority. It is a declaration of executive exceptionalism that places the decisions and actions of the President and Cabinet beyond judicial review. These interlocking illegalities where an unconstitutional Parliament approves an unconstitutional Cabinet establish interdependence that entrenches and embeds illegality in state institutions.

41In addition, to the national executive and national legislature, the apex judicial body is also illegally constituted. The Supreme Court of Kenya is a constitutional body whose membership is 7. In 2016 there were three vacancies on the Supreme Court: Chief Justice, Deputy Chief Justice and Judge of the Supreme Court. As an appointive body the Supreme Court is required to comply with the provisions of Article 27 (8) in terms of gender representation and to ensure neither gender exceeds 67 % which means of the 7 members no more than 4 could be of the majority gender. Of the four judges, only one was a woman, Justice Njoki Ndungu, as such based on the requirements of Article 27 (8) it is obvious that at least two of the three vacancies needed to be filled by women.

42Article 166 (1) provides that the President upon the recommendation of the Judicial Service Commission (JSC) appoints judges to the Supreme Court. In the case of the Chief Justice and Deputy Chief Justice JSC recommended candidates must be approved by the National Assembly prior to appointment by the President. In 2016 the JSC made recommendations for the appointment of two men and one woman to the Supreme Court thereby deliberately contravening Article 27 (8) with 71 % male membership. Kenya is therefore in the position where all three bodies of the national government are unconstitutional: the Cabinet, the Parliament and the Supreme Court.

43An unconstitutional national executive will create unprecedented uncertainty as to the legality of its national and international actions. An unconstitutional Parliament, and one that is controlled by the President’s political party is unable to exercise its constitutional functions including its executive oversight role. The Chief Justice, who presides over an unconstitutional Supreme Court has, despite a High Court order and a petition, and express provisions of the Constitution, failed to advise the President to dissolve Parliament.

44The illegality of the national government and its refusal to acknowledge or attempt to cure such illegality, signals to other parties that it is acceptable to resort to extra-constitutional means to resolve political and other conflicts. It is a definite retreat from democratic principles as the illegalities stem from the exclusion of a majority group-women. It also erodes the public trust in institutions and creates an environment of lawlessness where ordinary citizens cannot rely on public institutions to act objectively or for their benefit.

Conclusion

45While the focus has been on the political crisis, Kenya is also in the midst of a dormant constitutional crisis, with an unconstitutional national government, legislature, executive and judiciary. Livitsky and Ziblatt remind us “Democratic breakdown doesn’t need a blueprint… it can be the result of a sequence of unanticipated events” (Livitsky & Ziblatt, 2018). Intentional or not, Kenya is firmly on an anti-democratic path, one that is undermining its constitutional democracy through both an abuse of state institutions (actual violations of law) as well as inaction or inappropriate action by the public institutions authorized to check these excesses. The role of development partners and the international community in this continued erosion of democracy and constitutionalism is also extremely important. The Kenyan state is maintained and continues to act unfettered internationally despite these blatant and successive violations of law.

46As Professors Kabira and Kameri-Mbote argue, “beyond law, there is need for commitment to the principles of law.” (Kabira & Kameri-Mbote, 2016: 212). The failure by state actors to accept the constitutional limitations of their authority is laying the foundation for a systematic break-down in the rule of law and an unprecedented undermining of the Constitution of Kenya 2010 for all citizens, not just women. Illegal state institutions erode trust and undermine legitimate authority.

47By deliberately weakening so many public institutions – the Judiciary, Cabinet, the National Assembly and the Senate-the government is signalling that the accumulation and consolidation of power takes precedence over all law. In so doing, the government is likely laying the ground for probably the most significant period of political instability since the 2007/8 post-election crisis. This period of instability that will remain an element of Kenyan society until the issues of illegitimacy are addressed to the satisfaction of the majority of citizens which includes women. It also means that women’s role in political stability over the coming decade in Kenya may be more important than it has ever been.

Bibliografía

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Is a lawyer and a writer.

© Africae, 2018

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